State v. Cummings
| Citation | 262 N.W.2d 56 |
| Decision Date | 25 January 1978 |
| Docket Number | No. 12044,12044 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Elmer John CUMMINGS, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
John P. Guhin, Asst. Atty. Gen., Pierre, on the brief, William J. Janklow, Atty. Gen., Pierre, for plaintiff and respondent.
David V. Vrooman, Sioux Falls, for defendant and appellant.
Defendant has appealed from his conviction on a charge of possession of slot machines. SDCL 22-25-13. We affirm.
In the early morning hours of February 26, 1975, defendant's eastbound rental truck was stopped by a state trooper on Interstate 90 near Mitchell and defendant was cited for failing to display headlights. Defendant informed the officer that he had had generator problems but refused to grant the officer permission to examine the generator. In response to the officer's inquiry concerning the nature of the load that defendant was hauling in the truck, defendant stated that he was hauling antique furniture. Defendant refused the officer's request for permission to inspect the load and informed him that he had no bill of lading. The officer then called his supervisor. Upon the latter's arrival, the investigating officer informed defendant of his Miranda rights and questioned him further regarding the cargo in the truck. Defendant again told the officer that he was hauling antique furniture and gave as a reason for not wanting the officer to look in the truck the fact that he was hauling one antique slot machine, a picture of which he showed to the officer. The officer then took the truck to the Mitchell Police Department, where it was searched later that morning pursuant to a search warrant. The truck was found to contain, among other things, several slot machines, two of which were introduced as exhibits at defendant's trial.
At trial, defendant called as a witness the owner and developer of a tourist attraction near Sioux Falls. This individual, who in addition to his other civic activities was an incumbent state senator from Minnehaha County, testified that as a part of the planned development of a replica of an 1880 territorial town at his tourist attraction he planned to install some antique slot machines similar to the machines that he had seen in other tourist attractions around the state. Because of his position in public office and as the national vice-president of a medical research charitable organization, the witness was concerned that he not become involved in the ownership of any equipment that might lead to embarrassing publicity. Accordingly, sometime during the spring of 1974 he spoke with an assistant attorney general in the State Department of Revenue, who advised him to contact an appropriate official in the Internal Revenue Service. In response to his request, the witness received a letter from the Acting District Director of the Internal Revenue Service on May 8, 1974, advising him that because none of the machines that the witness contemplated owning would be offered for play to the public, there would be no federal tax liability. The letter also pointed out that federal law prohibits only the interstate transportation of gambling equipment, and that the Internal Revenue Service has no jurisdiction to enforce laws relating to gambling operations.
In addition, the witness received a letter on May 28, 1974, from the assistant attorney general he had earlier spoken with. This letter stated that it was the writer's opinion that if the slot machines the witness intended to possess were not in fact operated but were merely on display for the public there would be no violation of state law. The letter very carefully stated that the views expressed therein were those of the writer and were not in any way to be considered the opinion of the Attorney General.
The witness also received a letter from the Minnehaha County State's Attorney which stated that the possession and use of slot machines is unlawful under state law and that the mere possession of such machines is declared to be a public nuisance. Accordingly, the letter suggested that the machines to be acquired be altered in a way that would make it impossible that they ever be used for gambling.
The witness showed these letters to defendant and asked him to obtain some slot machines that would be suitable for the purposes for which the witness wished to use them at the tourist attraction. The witness was not certain, however, exactly when it was that he had this conversation with defendant and could not relate it to a time that approximated the date of the offense. He acknowledged on cross-examination that he did not know whether defendant was in fact obtaining anything for him on the day defendant was arrested. Defendant did not testify.
Defendant's first contention is that no crime was committed because South Dakota law prohibits only the use of slot machines.
SDCL 22-25-13 provides:
Such an approach to statutory construction is at odds with SDCL 22-1-1, which provides:
Read in the mechanistic manner followed by the California court, SDCL 22-25-13 is susceptible of the interpretation urged by defendant, but only at the cost of disregarding the adjuration of SDCL 22-1-1 that the statute be construed according to the fair import of its terms and with a view to effect its objects SDCL 22-25-13 should not be read in isolation, but rather should be construed in the light of the other provisions of Chapter 22-25, including SDCL 22-25-14, which provides:
"All slot machines capable of being used for gambling and places where they are kept or operated together with all property of any kind kept or used in connection with operation of the same, are hereby declared to be public nuisances."
We should not presume that the legislature intended to make the possession of an operable slot machine a nuisance and at the same time intended that the possession of such a machine should not be unlawful. We conclude, therefore, that that language in SDCL 22-25-13 that speaks of a machine "upon the action of which anything of value is staked and which is operated by placing therein or thereon any coins . . . or in any other manner as a result of such operation anything of value is won or lost . . . " is language of description and not language that limits the prohibition against the devices described therein to those that are being or have been used for gambling. See Bobel v. People, 173 Ill. 19, 50 N.E. 322; Annot. 162 A.L.R. 1188, 1191. *
Defendant's next contention is that the trial court erred in refusing to give his proposed instruction that:
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